Chattisgarh High Court
Sombahadur Rana vs State Of Chhattisgarh on 3 January, 2023
1
Cr.A. No. 589 of 2013
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 589 of 2013
Sombahadur Rana S/o Narbahadur Rana, aged about 50 years, R/o
Valmiki Nagar Awas, Police Station Amanaka, Raipur, Tahsil, Civil
and Revenue District Raipur (C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through- Station House Officer, Police of
Police Station- Amanaka, Raipur, District - Raipur (C.G.)
---- Respondent
For Appellant : Mr. G.P. Kurre, Advocate
For Respondent : Mr. Anmol Sharma, Panel Lawyer
Division Bench:
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
(03.01.2023)
Rakesh Mohan Pandey, J.
1. This criminal appeal has been filed under Section 374(2) of the
Cr.P.C. assailing the judgment of conviction and order of sentence
recorded by VIth Additional Sessions Judge Raipur, District Raipur
(C.G.) dated 26.04.2013 in Sessions Trial No. 251/2012, whereby
the appellant has been convicted for offence punishable under
Section 376(1) of the I.P.C. and sentenced to undergo life
imprisonment and fine of Rs.1,000/-, and in default of payment of
fine to undergo additional R.I. for one month.
2. Case of the prosecution in nutshell is that victim (PW-2) lodged an
F.I.R. on 25.10.2012 at about 12:30 hours to the effect that on
24.10.2012 at about 17:00 hours while she was alone in the house,
her father i.e. present appellant forcibly took her to the bed,
Cr.A. No. 589 of 2013
undressed her and thereafter committed forcible intercourse. She
has further stated that when she raised hue and cry, her neighbors
Laxmi Pandey (PW-4) and Rupesh (PW-6) came to her house and
thereafter, her father wore his dress and she was also given clothes
by Laxmi Pandey (PW-4). When her mother came to house, the
incident was narrated to her and on the next day, F.I.R. was lodged.
The victim (PW-2) was taken for medical examination and consent
in this regard was given by her mother vide Ex.-P/3. She was
medically examined by Dr. Rajni Chourasia (PW-9) and her report is
Ex.-P/9. Two vaginal slides and undergarment of the victim were
sent for chemical examinations vide Ex.-P/17 by the said Doctor.
Map was prepared vide Ex.-P/4. The slides of private part of the
victim and undergarment were seized vide Ex.-P/6. Statement of
the witnesses was recorded under Section 161 of the Cr.P.C. and
after completion of the investigation; charge-sheet was filed for the
offence punishable under Section 376 of the I.P.C. before the
Judicial Magistrate First Class, Raipur which was committed to the
Court of VIth Additional Sessions Judge, Raipur for hearing and
disposal in accordance with law.
3. The trial Court framed charge under Section 376 of the I.P.C. on
27.12.2012 against the appellant. The appellant abjured the guilt
and entered into defence. The prosecution in order to bring home
the offence examined as many as 09 witnesses and exhibited 17
documents. Statement of the appellant under Section 313 of Cr.P.C.
was recorded in which he abjured the guilt and pleaded innocence;
Cr.A. No. 589 of 2013
however, the appellant examined himself as defence witness.
4. The trial Court after appreciation of oral and documentary evidence
available on record convicted the present appellant as mentioned in
opening paragraph of this judgment. Hence, the appellant has
preferred the instant appeal under Section 374(2) of Cr.P.C. against
the impugned judgment of conviction and order of sentence
recorded by the trial Court.
5. Learned counsel for the appellant would submit that the appellant
has not committed any offence and on account of his ill-behavior
towards his wife, children and neighbors, a false F.I.R. has been
registered against him. He would further submit that medical
evidence does not support the allegations leveled against him and
in FSL report also human semen has not been found in the seized
undergarment of the victim and vaginal slides taken by Doctor. He
would further submit that from the evidence of victim (PW-2),
mother of victim (PW-3), independent witnesses Laxmi Pandey
(PW-4) and Rupesh (PW-6), it is quite vivid that the behavior of the
appellant was not good towards his family members as well as the
neighbors and he was a drunkard, therefore, to get rid of him, a
false F.I.R. has been registered. He would pray for acquittal of the
appellant.
6. On the other hand, learned counsel for the State would submit that
the allegation has been made against father which cannot be
ignored as there was no occasion for daughter to make such a
heinous accusation against her father. He would further submit that
Cr.A. No. 589 of 2013
Dr. Rajni Chourasia (PW-9) has opined that there might be
possibility of sexual intercourse and thus, the commission of forcible
intercourse cannot be ruled out. He would further submit that the
appeal deserves to be dismissed.
7. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the records
with utmost circumspection.
8. The trial Court has recorded the conviction on the basis of evidence
of victim (PW-2) and her mother (PW-3) who have categorically
stated that the appellant has committed sexual intercourse upon the
body of victim. But the independent witnesses Laxmi Pandey (PW-
4) and Rupesh (PW-6) have not supported the entire case of the
prosecution. It would be advantageous to consider the evidence of
relevant witnesses as well as the medical evidence available on
record.
9. PW-2 is the victim who has stated that she is residing along with her
two brothers, mother and father. She has further stated that on the
date of incident, she was alone and her father pushed her on bed,
undressed her, thereafter committed sexual intercourse upon her.
She made hue and cry and at the same time one aunty namely
Seema came there. The door was bolted from inside. In para-3, she
stated that her maternal uncle entered into the room and took her
outside. The appellant was taken to ground floor as the victim and
her family was residing on the third floor, where the neighbors
assaulted the appellant. When her mother came, the incident was
Cr.A. No. 589 of 2013
narrated to her and her mother also assaulted the appellant.
Thereafter, the matter was reported to the police and she was
medically examined. In cross-examination, she has stated that her
father is an idle man and he was released from jail few days back.
She has further stated that on complaint of her mother, he was sent
to jail. Her father used to beat her mother and children and he also
used to trouble the neighbors. She has further admitted that after
release from jail, her father again assaulted her mother and
children. She has further stated that on the date of incident, she
was slapped by her father and this fact was narrated to her mother
when she came back home and thereafter her mother had gone to
police station. In para-11, she has admitted that she has put her
signature at the places where her mother told her and she has no
idea what was written over the paper. She has also admitted that
she did what she was asked to by the police.
10. PW-3 mother of the victim has stated that when she came from
work, her daughter informed about the incident and thereafter she
went to police station. In cross-examination, she has admitted that
since last 25-26 years, the appellant is harassing and assaulting her
after consuming liquor. She has further admitted that prior to
Dussehra Festival on her report the appellant was sent to jail and
after Dussehra, he was released. She has also admitted that the
local residents are also annoyed from the behavior of the appellant,
11. PW-4 Laxmi Pandey has stated that when she entered into the
room of the victim, she (victim) was lying on bed and was making
Cr.A. No. 589 of 2013
hue and cry. The victim and the appellant were fully dressed, but the
appellant had gagged her mouth. In cross-examination, she has
admitted that the family members of the appellant along with the
residents of the locality were in trouble on account of behavior of
the appellant and therefore, PW-3 wife of the appellant was advised
to get rid of him.
12. PW-6 Rupesh has stated that when he entered into the room of the
appellant, he found appellant and the victim on bed. One hand of
the appellant was over mouth of the victim and another was over
chest. Thereafter, the appellant was taken to the ground floor where
he was beaten by the local residents. In para-5, he has admitted
that the local residents were in trouble on account of behavior of the
appellant, therefore, they wanted to get rid of him and wife of the
appellant was advised to do so.
13. PW-9 Dr. Rajni Chourasia, who has examined the victim (PW-2) on
25.10.2012 at about 04:00 pm, has stated that there were no
injuries over breast, genital area and external body of the victim.
She opined that there might be possibility of sexual intercourse, but
it can be determined in the chemical examination and undergarment
of the victim along with two slides was handed over to the police for
chemical examination.
14. PW-8 Dr. Gyanesh Kumar Choubey medically examined the
appellant who has stated that there was no smegma over the penis
of the appellant and there is no symptom of intercourse in near past
and his report is Ex.-P/10. Two slides and undergarment of the
Cr.A. No. 589 of 2013
victim were sent for chemical examination and vide report Ex.-P/16
no human sperm was found on these articles. The time of incident
is about 05:00 pm on 24.10.2012 whereas appellant was medically
examined on 25.10.2012 at about 09:15 pm.
15. The appellant in his evidence as defence witness has stated that he
was married to PW-3 (mother of the victim) 20-25 years ago and he
has addiction of consuming liquor. He works as guard and he never
gives his salary to his wife. Earlier he was sent to jail on complaint
of his wife. On the date of incident he slapped the victim and
thereafter, he was beaten by residents of locality and a false
complaint has been registered against him. In cross-examination,
he has stated that his wife does not want to live with him; therefore,
a false complaint has been lodged.
16. The Hon'ble Supreme Court while considering the impact of false
allegation of rape in the matter of Raju and Others vs. State of
Madhya Pradesh, (2008) 15 SCC 133 has held thus:-
"11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at
the same time a false allegation of rape can cause
equal distress, humiliation and damage to the
accused as well. The accused must also be protected
against the possibility of false implication, particularly
where a large number of accused are involved. It
must, further, be borne in mind that the broad principle
is that an injured witness was present at the time
when the incident happened and that ordinarily such a
witness would not tell a lie as to the actual assailants,
but there is no presumption or any basis for assuming
that the statement of such a witness is always correct
or without any embellishment or exaggeration."
17. The Hon'ble Supreme Court in the matter of Radhu vs. State of
Cr.A. No. 589 of 2013
Madhya Pradesh, (2008) 2 SCC (Cri) 207 while considering the
strained relations between the accused and victim's mother and
other relatives held that possibility of the accused to be involved in
false case cannot be ruled out. It is further held that the statement
of the prosecutrix in the absence of any other corroborating material
cannot be taken on its face value to base conviction, which reads
thus:-
"6. It is now well settled that a finding of guilt in a
case of rape, can be based on the uncorroborated
evidence of the prosecutrix. The very nature of
offence makes it difficult to get direct corroborating
evidence. The evidence of the prosecutrix should not
be rejected on the basis of minor discrepancies and
contradictions. If the victim of rape states on oath that
she was forcibly subjected to sexual intercourse, her
statement will normally be accepted, even if it is
uncorroborated, unless the material on record
requires drawing of an inference that there was
consent or that the entire incident was improbable or
imaginary. Even if there is consent, the act will still be
a "rape", if the girl is under 16 years of age. It is also
well settled that absence of injuries on the private
parts of the victim will not by itself falsify the case of
rape, nor construed as evidence of consent. Similarly,
the opinion of a doctor that there was not evidence of
any sexual intercourse or rape, may not be sufficient
to disbelieve the accusation of rape by the victim.
Bruises, abrasions and scratches on the victim
especially on the forearms, wrists, face, breast, thighs
and back are indicative of struggle and will support the
allegation of sexual assault. The courts should, at the
same time, bear in mind that false charges of rape are
not uncommon. There have also been rare instances
where a parent has persuaded a gullible or obedient
daughter to make a false charge of a rape either to
take revenge or extort money or to get rid of financial
liability. Whether there was rape or not would depend
ultimately on the facts and circumstances of each
case."
18. Coming to the present case in light of the ratio laid down by the
Cr.A. No. 589 of 2013
Hon'ble Supreme Court and the facts discussed above, in the
present case age of the victim (PW-2) was about 12 years and
when her court statement was recorded, she was aged about 13
years. If we just look at the statements given by the victim, she has
been consistent in saying that she was raped by her father. The
mother (PW-3) has also supported the statement of the victim (PW-
2) to a large extent, but if we look at the surrounding circumstances
in which this case was registered, one gets suspicious and doubtful
over the truthfulness and veracity of statement made by the victim.
We cannot shut our eyes from the fact that the victim is a child and
more often the children can be easily swayed away and are prone
to tutoring, therefore, the statement of the child witness should
always be scrutinized with great care and caution, more particularly
in a case where there is a serious hostility between the husband
and wife and there are fair chances for the child to act at the behest
of one such party in his/her pursuit of settling scores against the
other party. In such cases, not only the court has to search for
reliable corroborative evidence either oral or documentary or
medical, as a matter of prudence, but must also feel satisfied that
such a child is not playing in the hands and dictation of any family
member or other person who may be in a better position to have a
command and dominance over the child. This precaution is
necessary because child witness is amenable to tutoring and often
lives in the world of make-believe. The cases of false implication in
rape cases are not uncommon and in some cases parents do
Cr.A. No. 589 of 2013
persuade gullible or obedient daughter to make false charge of rape
either to take revenge or for wreaking vengeance on the accused.
The desire to take revenge is an evolved outgrowth of our human
sense of unsatisfied reciprocity.
19. In the present case, mother of the victim, driven by the feeling of
revenge as she and her children were being ill-treated by the
present appellant, has gone to the extent of falsely implicating her
husband for the rape of her daughter. At the first instance, it
appeared to us that the father has really committed such a heinous
offence with his own daughter; however a deep scrutiny of all the
evidence taken together gives an altogether different picture.
20. PW-4 Laxmi Pandey and PW-6 Rupesh who are the independent
eyewitnesses have not supported the case of the prosecution. They
have not made any allegation regarding sexual intercourse. Only
allegation made by these two witnesses is that when they entered
into the room of the appellant, they found one hand of the appellant
was over the mouth of victim and another was over the chest. PW-4
has stated that the appellant and the victim were properly dressed.
PW-2 (victim) has made complaint regarding ill-behavior of the
appellant and it is also apparent from her evidence that on instance
of her mother (PW-3), the F.I.R. (Ex.-P/2) was lodged. There are
allegations regarding ill-treatment by appellant to his entire family
and neighbors. PW-3, mother of the victim, has also made same
allegations. The mother of the victim, neighbors wanted to get rid of
the appellant which comes out from the evidence of the witnesses.
Cr.A. No. 589 of 2013
Further, considering the medical evidence, there were no injuries
either on private part or external bodily injuries over body of the
victim. PW-9 Dr. Rajni Chourasia has not given any opinion regard-
ing sexual intercourse. PW-8 Dr. Gyanesh Kumar Choubey who ex-
amined the appellant has not found smegma over penis of the
appellant and he has given definite opinion that presence of
smegma is sine qua non to ascertain intercourse in near past. In
F.S.L. report (Ex.-P/16) also no human semen was found on vaginal
slides and undergarment of the victim (PW-2). The victim (PW-2),
her mother (PW-3) and neighbors Laxmi Pandey (PW-4) and
Rupesh (PW-6) were annoyed with the behavior of the present
appellant, therefore, the possibility of the false implication cannot be
ruled out.
21. In light of the above discussion, the possibility of false implication
cannot be ruled out; therefore, the conviction and sentence
recorded against the appellant under Section 376(1) of the I.P.C.
are set aside. He is acquitted of the charge by extending benefit of
doubt. The appellant is in jail since 25.10.2012. He shall be set at
liberty forthwith, if not required in connection with any other crime.
22. Accordingly, the criminal appeal is allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
vatti
